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Evidence - Post-Offence Conduct (4). R. v. Fitzsimons
In R. v. Fitzsimons (Ont CA, 2026) the Ontario Court of Appeal considers 'after-the-fact' (aka 'post-conduct') conduct evidence:[21] An accused’s conduct after the commission of an offence may provide circumstantial evidence of the accused’s guilt: R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at para. 19. Evidence of an accused’s after-the-fact conduct is admissible if it is relevant, material, not contrary to an applicable admissibility rule and its probative value exceeds its prejudicial effect: R. v. Mullin, 2019 ONCA 890, 383 C.C.C. (3d) 16, at para. 48. However, evidence of after-the-fact conduct can pose reasoning risks; a trier of fact may jump too quickly to the conclusion that after-the-fact conduct is evidence of guilt without properly considering alternative explanations for the conduct: White, at para. 22. Before inferring guilt from an accused’s after-the-fact conduct, the trier of fact must therefore consider all the evidence and be satisfied that the accused’s guilt is the only reasonable inference that can be drawn from the after-the-fact conduct: White, at para. 57; R. v. Hall, 2010 ONCA 724, 263 C.C.C. (3d) 5, at para. 136, leave to appeal refused, [2010] S.C.C.A. No. 499. . R. v. Konashewych
In R. v. Konashewych (Ont CA, 2026) the Ontario Court of Appeal dismissed two criminal appeals, these brought against convictions against both defendants for fraud, and one for "breach of trust by a public officer" under CCC s.122.
Here the court considers 'after-the-fact conduct' evidence:[77] After-the-fact conduct evidence, like any evidence, is “admissible if it is relevant to a live, material issue in the case, its admission does not offend any other exclusionary rule of evidence, and its probative value exceeds its prejudicial effects”: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 107, per Martin J. (dissenting, but not on her exposition of these legal principles). Where this type of evidence is not relevant to a live issue, “it must be excluded or the jury should be instructed that [it has] no probative value”: Calnen, at para. 109. Evidence of after-the-fact conduct may ground a range of reasonable inferences, some pointing to culpability and others pointing to lesser culpability or even innocence; it is for the trier of fact to choose “which inferences they accept and the weight they ascribe to them”: Calnen, at para. 112. Lastly, trial judges should expressly state to the jury the potential inferences arising from the after-the-fact conduct evidence and explain the chain of reasoning that supports those inferences: Calnen, at para. 113. A specific caution about this type of evidence should be provided when judicial experience suggests the jury may assign more weight to it than it warrants: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 60.
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